01973642
04-14-2000
____________, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
_________________ v. United States Postal Service
01973642
April 14, 2000
____________, ) Appeal No. 01973642
Complainant, ) Agency Nos. 4E8701125-94,
) 4E8701072-95,
v. ) 4E8701110-95,
) 4E8701137-95,
William J. Henderson, ) 4E8701150-95
Postmaster General, ) Hearing Nos. 350-95-8149X,
United States Postal Service, ) 350-95-8311X,
Agency. ) 350-96-8072X,
) 350-96-8115X,
) 350-96-8117X
DECISION
INTRODUCTION
Complainant timely initiated an appeal from the agency's final decision
(FAD) concerning her equal employment opportunity (EEO) complaints
of unlawful employment discrimination on the bases of national origin
(Hispanic), sex (female), and reprisal (prior EEO activity), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq.<1> Complainant alleges that she was discriminated
against when:
the agency placed her on administrative leave, issued her a 7-day
suspension, and required her to attend EAP counseling on June 16,
1994;
the agency officials allowed a customer to abuse her verbally on June
16, 1994;
the agency issued her a 7-day suspension on January 11, 1995;
the agency treated male employees on March 29, April 6, April 12,
April 14, April 21, and April 26, 1995 in a manner which created
a hostile working environment;
the agency prohibited her from returning to work without a CA-17
form from her doctor and subjected her to a continuing hostile
working environment on May 22, 1995; and
the agency issued her a notice of removal on June 20, 1995.
The appeal is accepted pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)(to
be codified at 29 C.F.R. � 1614.405). For the following reasons, the
Commission AFFIRMS the FAD.
ISSUE PRESENTED
The issues on appeal are whether complainant has established, by a
preponderance of the evidence, that the agency discriminated against
her on the bases of national origin, sex, and reprisal.
BACKGROUND
The record reveals that during the relevant time, complainant was employed
as a window distribution clerk at the agency's Las Cruces, New Mexico
facility. On June 16, 1994, an altercation between complainant and
an agency customer occurred. During this altercation, the complainant
allegedly called the customer a "liar" and a "drunk," and the customer
allegedly called the complainant a "stupid" and "lazy" Mexican.
Following the altercation, an agency official separated the customer
from the complainant and assisted her in filing an agency complaint
against the complainant. As a result, the agency put complainant on
administrative leave, issued her a 7-day suspension, and required her
to attend EAP sessions.
The following events occurred several months later: an altercation between
complainant and a co-worker (a Hispanic female), a disrespectful gesture
and comment to complainant's supervisor, and an allegedly offensive
remark complainant made to a customer. As a result, the agency issued
complainant a 7-day suspension on January 11, 1995.
Complainant alleges that, through several incidents from March 29 through
April 26, 1995, the agency created a hostile work environment for her.
These incidents involved management's reactions to complainant's
behavior (such as refusal to provide service requested, refusing a
direct order, arguing with a supervisor, and leaving her work station
without permission).
On May 22,1995, complainant refused to return form CA-17 (medical
authorization to return to work) to the agency in order to return to work.
As a result, the agency officials ordered complainant to leave work and
not to return until she had the forms signed by her doctor.
Finally, the agency discharged complainant for progressive disciplinary
problems on June 20, 1995.
Believing she was a victim of discrimination, complainant timely
sought EEO counseling immediately after each of the above events,
and subsequently, she filed formal complaints.In addition, she filed
grievances on some of the above issues. As a result of these grievances,
some of the administrative leaves and suspensions were changed to letters
of warnings or were removed from her personnel file.
At the conclusion of the investigation, complainant received a copy
of the investigative report(s) and requested a hearing before an EEOC
Administrative Judge (AJ). The five complaints, which included six
claims, were consolidated for a hearing. Following the hearing, the AJ
issued a recommended decision finding no discrimination on all of the
above bases.
The AJ concluded that complainant failed to establish a prima facie
case of national origin and sex discrimination because she failed to
demonstrate that similarly situated employees, who were not in her
protected classes, were treated differently under similar circumstances.
Also, the AJ concluded that complainant failed to establish a prima facie
case of reprisal discrimination on Issue B because she did not show a
causal link between the protected activity and the manner in which the
supervisor handled the customer's complaint or on Issue D because she
did not show that similarly situated employees not in her protected class
were treated differently. However, the AJ determined that complainant had
established a prima facie case of reprisal discrimination on issues A,
C, E, and F. She found that the complainant had engaged in EEO activity,
that all of the managers involved in the alleged discriminatory acts were
aware of this participation, that she suffered from adverse actions,
and that there was a causal connection between the participation and
adverse actions.
The AJ then concluded that the agency articulated legitimate,
nondiscriminatory reasons for its actions. Although the AJ accepted
the complainant's version of the facts as truth, she found that the
agency responded to complainant's behavior and attempted to change
complainant's behavior towards customers, co-workers, and management.
These reasons included: (1) complainant offended a customer and did not
professionally handle the altercation with the customer; (2) the agency
official did not hear the isolated ethnic comment from the customer,
and the agency official separated the customer from the complainant; (3)
complainant and her co-worker (Hispanic female) were both disciplined,
and complainant received a more severe discipline than her co-worker
because she had disrespected a supervisor and insulted a customer;
(4) from March 29 through April 26, 1995, the agency responded to
complainant's inappropriate behavior after each incident; (5) the agency
ordered complainant to leave work because she did not have her doctor
sign the necessary forms for her to return to work; and (6) the agency
discharged complainant for progressive disciplinary problems.
The AJ found that complainant did not establish that, more likely than
not, the agency's articulated reasons were a pretext to mask unlawful
discrimination or retaliation. In reaching this conclusion, the AJ
found that there was a sufficient factual basis for each of the agency's
actions and that there was no direct or circumstantial evidence from
which to infer the existence of a discriminatory animus.<2>
The FAD implemented the AJ's recommended decision.
On appeal, complainant restates arguments previously made at the hearing.
The complainant further argues that the AJ erred when she found the agency
articulated legitimate, non-discriminatory reasons for its actions.
In addition, the complainant argues the AJ erred when she found that
the agency had not shown progressive discipline but concluded the agency
had a non-discriminatory reason for complainant's removal. In response,
the agency restated the position in its FAD and requests that we affirm
its FAD.
ANALYSIS AND FINDINGS
Pursuant to 64 Fed. Reg 37,644, 37,659 (1999) (to be codified at
29 C.F.R. � 1614.405(a)), all post-hearing factual findings by an
Administrative Judge will be upheld if supported by substantial evidence
in the record. Substantial evidence is defined as "such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion."
Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474,
477 (1951) (citation omitted). A finding that discriminatory intent
did not exist is a factual finding. See Pullman-Standard Co. v. Swint,
456 U.S. 273, 293 (1982).
After a careful review of the record, the Commission finds that the AJ's
recommended decision summarized the relevant facts and referenced the
appropriate regulations, policies, and laws. We agree with the AJ's
analysis that complainant failed to present evidence that any of the
agency's actions were in retaliation for complainant's prior EEO activity
or were motivated by discriminatory animus toward complainant's sex or
national origin. We discern no basis to disturb the AJ's recommended
decision.
CONCLUSION
Therefore, after a careful review of the record, we AFFIRM the agency's
final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, MUST BE FILED
WITH THE OFFICE OF FEDERAL OPERATIONS (OFO) WITHIN THIRTY (30) CALENDAR
DAYS of receipt of this decision or WITHIN TWENTY (20) CALENDAR DAYS OF
RECEIPT OF ANOTHER PARTY'S TIMELY REQUEST FOR RECONSIDERATION. See 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. � 1614.405); Equal Employment Opportunity Management
Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999).
All requests and arguments must be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.604). The request or opposition must
also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
You have the right to file a civil action in an appropriate United States
District Court WITHIN NINETY (90) CALENDAR DAYS from the date that you
receive this decision. If you file a civil action, YOU MUST NAME AS THE
DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD
OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND
OFFICIAL TITLE. Failure to do so may result in the dismissal of your case
in court. "Agency" or "department" means the national organization, and
not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
April 14, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2 The AJ further acknowledged "Absent discriminatory animus, it is
inappropriate for the fact finder in a Title VII case to interfere with
the agency's exercise of its managerial responsibilities, no matter
how much the fact finder disagrees with the way they were exercised.
The issue to decide is not whether the supervisor acted properly, but
whether he acted in violation of Title VII." (Recommended Decision,
p. 27).